The opinion of the Court was drawn up by
Weston C. J.The plaintiff had leave to amend, by striking out two of the defendants. This was allowed, under the statute, of 1835, c. 178, § 4. He should have paid them their costs, which is a condition imposed by that statute. Whether this is a *422question only between the plaintiff and the defendants, whose names were stricken out, or whether if not, it cannot be corrected without setting aside the verdict, it is unnecessary to determine, as we are of opinion, that the exceptions are sustained upon another point.
There is no sufficient proof, that the defendants have entered into the land, and withheld the possession from the tenant, so as to bring the case within the slat, of 1821, c. 62, § 5. The privity between the defendants and Cyrus J. Fay, who did enter, appears in Fay’s deposition. The defendants had given Fay a bond to convey the land to him. This did not carry with it a right to put the plaintiff out of possession. If Fay thereupon proceeded to do so, against the consent of the plaintiff, the tenant, he should have sought his remedy again'st him. The defendants were not implicated by his illegal acts, merely because they had contracted to convey to him. When he had entitled himself to a deed, they might have extinguished the plaintiff’s claim, if it had not already been done. There is in the case some evidence, tending to show that Fay was the agent of the defendants ; but how he stood in relation to this lot, appears from his deposition. Having contracted to purchase, he entered on his own account, presuming on the indulgence of the defendants, so far as their interest was affected, which is not unusual in such cases. But in order to charge them under the statute, it should appear affirmatively, that Fay acted for them, so as to render them distinctly liable for his entry.
Exceptions sustained.